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  News & Views Monday 27th June to Sunday 3rd July 2016  
Danish Police Seize Valuables From Asylum Seekers

Denmark has seized valuables from asylum seekers for the first time, five months after passing a law that allows police to take cash and jewellery worth over 10,000 kroner from them. Police took 79,600 kroner (£8,900) from five Iranians who flew into Copenhagen airport on Tuesday and immediately claimed asylum, the Danish immigration police said in a statement.  Since the five had travelled on false passports, they were arrested for forgery and searched – at which point their money was found and most of it confiscated. Asylum seekers in Denmark can keep cash and valuables worth less than 10,000 kroner – anything more can be taken to pay for their care, according to the controversial legislation enacted in early February.  The law drew fierce criticism when it was first debated in January, with some critics drawing comparisons with how Jews were treated in Nazi Germany. The Danish government said such claims were “ludicrous”, adding refugees were treated little differently to Danish welfare claimants.

Read more: Patrick Kingsley, Guardian, http://tinyurl.com/zn55yuy


Stop Evictions of Roma and Travellers

Traditionally, summer holidays coincide with the eviction of Roma and Travellers[1] throughout Europe, which takes place almost unnoticed. The Office of the United Nations High Commissioner for Human Rights (OHCHR) and the OSCE’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR) join the Council of Europe, the European Union Agency for Fundamental Rights (FRA), the European Network of European National Human Rights Institutions (ENNHRI) and the European Network of Equality Bodies (Equinet) in a statement to condemn the recent evictions of Roma and Travellers in Europe.

Throughout Europe, Roma and Travellers – particularly those living in informal settlements, slums or halting sites – face a disproportionately high threat of eviction. Signatories call on national, regional and, in particular, local authorities to find sustainable solutions to the housing problems that many Roma and Travellers face, in order to avoid evictions. (more...)


Yarl's Wood Immigration Removal Centre – Sexual Assaults/Rape

Lord Lester of Herne Hill: To ask Her Majesty’s Government how many detainees have reportedly been sexually assaulted or raped inside Yarl's Wood Immigration Removal Centre since Serco took over its operation.

Lord Ahmad of Wimbledon: Serco, the private supplier at Yarl’s Wood immigration removal centre (IRC), took over the centre’s operation in February 2007. Since 2008, the date from which local records have been collated centrally, there have been twenty-three allegations of sexual assault or rape made by detainees against staff. This includes two allegations of rape, of which one was unsubstantiated and one is subject to continuing criminal proceedings. This is provisional management information that is subject to change. It has not been assured to the standard of Official Statistics.
All complaints made by detainees at an IRC are investigated by the IRC supplier in accordance with Detention Services Order 03/2015. Any allegations of serious misconduct made by a detainee against staff at an IRC are also referred to the Home Office Professional Standards Unit for investigation. Where a detainee, or someone on behalf of a detainee, alleges that a member of staff has committed a sexual offence against them the police will automatically be notified, even if the detainee does not wish the matter to be reported or to make a formal complaint.

Source: Lords Hansard, 20th June 2016


Asylum Research Consultancy (ARC) COI Update Volume  128

This document provides an update of UK Country Guidance case law, UK Home Office publications and developments in refugee producing countries (focusing on those which generate the most asylum seekers in the UK) between 14 June and 27 June 2016. http://tinyurl.com/zxkfhqj


Home Office Ordered to Pay Damages in Privacy Claim
 
The Home Office has been ordered to pay a total of £39,500 to 6 asylum seekers whose confidential information was accidentally published on a Home Office website and then republished on an American document sharing site. The Home Office will also be responsible for paying the legal costs, and face the prospect of other claims as almost 1,600 people's details were also published in the same document. Although information was taken off the Home Office website after 2 weeks, the Claimants explained how shocked and upset they had been, and evidence was given to the Court that at least one foreign Government may have accessed the information and detained some of the Claimants' family members abroad as a result.

 Their solicitor, Tamsin Allen of Bindmans LLP said: "The Home Office has admitted that the blunder was a misuse of the Claimants' private information and a breach of the Data Protection Act. Despite this, the Home Secretary had argued that this was not a case where damages should be paid. It is well recognised that a person fleeing persecution has the right to make an application for asylum in confidence without the risk of their persecutors being alerted. These vulnerable claimants were very distressed upset and scared on learning about the publication and are all pleased to have had their serious distress recognised by the Court in an award of damages."

Source: Tamsin Allen, Bindmans, http://tinyurl.com/h3l4kwz


New Practical Guide on Access to Justice in European Law

On 22 June 2016, the European Union Agency for Fundamental Rights (FRA) and the European Court of Human Rights launched a practical handbook on European law relating to access to justice.

“Access to justice is not just a right in itself. It is also a key enabler for making other fundamental rights a reality,” says FRA Director Michael O’Flaherty. “This practical guide provides legal practitioners with a key legal resource to help them actively support all those who face barriers in fully and effectively enjoying access to justice.”

“This handbook summarises key access to justice principles, drawing on a wide body of European law and jurisprudence,” says President of the European Court of Human Rights Guido Raimondi. “Providing easy-to-use information on the main standards in Europe will greatly assist legal practitioners ensure everyone seeking justice has proper support, a fair trial and access to effective remedies.”

The Handbook on European law relating to access to justice is a comprehensive guide to European law in this area. It seeks to raise awareness and improve knowledge of relevant standards set by the European Union and the Council of Europe, particularly through the case law of the Court of Justice of the EU and the European Court of Human Rights.

This handbook is designed to assist judges, prosecutors and legal practitioners involved in litigation in EU and Council of Europe Member States with legal issues relating to access to justice. Non-governmental organisations and other bodies that assist individuals in accessing justice will also find it useful.

The publication focuses principally on civil and criminal law. It covers such issues as a fair and public hearing before an independent and impartial tribunal; legal aid; the right to be advised, defended and represented; the right to an effective remedy; length of proceedings; and other limitations on access to justice. It also examines access to justice in selected areas: victims of crime; people with disabilities; prisoners and pre-trial detainees; environmental law; and e-justice.

The handbook is available in English and French. Other language versions will follow.

Download handbook: English Version http://tinyurl.com/EuAccesstoJustice


1,200 Die of Starvation and Illness at Nigeria Refugee Camp

More than 1,200 people have died of starvation and illness at an aid camp in north-east Nigeria that houses people fleeing the Islamist militant group Boko Haram, according to the medical charity Médecins Sans Frontières. MSF said on Thursday 23/06/2016, that its team found 24,000 people, including 15,000 children, sheltering in the camp located on a hospital compound during a visit to Bama last month – its first trip there since the city was wrested from Boko Haram’s control in March 2015. Bama was part of an area held by Boko Haram for more than six months before the group was pushed out by the army. MSF said a “catastrophic humanitarian emergency” was unfolding at the camp. It said around a fifth of the 800 children who underwent medical screening were acutely malnourished and almost 500 children had died

Read more: Guardian, http://tinyurl.com/hnqgbkz


Refusal to Grant Residence Permit to Gay Couple on Family Grounds Unjustified Discrimination

In today’s Chamber judgment1 in the case of Taddeucci and McCall v. Italy (application no. 51362/09) the European Court of Human Rights held, by six votes to one, that there had been: a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned a refusal by the Italian authorities to grant a residence permit to a gay couple on family grounds.

The Court found in particular that the situation of Mr Taddeucci and Mr McCall, a gay couple, could not be understood as comparable to that of an unmarried heterosexual couple. As they could not marry or, at the relevant time, obtain any other form of legal recognition of their situation in Italy, they could not be classified as “spouses” under national law. The restrictive interpretation of the notion of family member constituted, for homosexual couples, an insuperable obstacle to the granting of a residence permit on family grounds. That restrictive interpretation of the concept of family member, as applied to Mr McCall, did not take due account of the applicants’ personal situation and in particular their inability to obtain a form of legal recognition of their relationship in Italy.

In deciding to treat homosexual couples in the same way as heterosexual couples without any spousal status, the State had breached the applicants’ right not to be subjected to discrimination based on sexual orientation in the enjoyment of their rights under Article 8 of the Convention.

Source: ECtHR, http://tinyurl.com/jrm4x56


Bangladesh: Religious Freedom

Lord Alton of Liverpool: To ask Her Majesty’s Government what representations they have made to the government of Bangladesh about the case of Anata Gopal Ganguly and the murders of atheists and Christians.
Baroness Anelay of St Johns: The Government is extremely concerned by the increase of extremist-related violence in Bangladesh since September 2015, including the murder of Ananda Gopal Ganguly and other individuals from religious and minority groups. We are in regular contact with the Bangladesh government about extremism, human rights and a range of other issues. The Prime Minister, my Rt Hon. Friend the Member for Witney (Mr Cameron), most recently raised this with the Prime Minister of Bangladesh in the margins of the G7 meeting in Japan on 27 May. Our High Commissioner regularly discusses these issues with Bangladesh government ministers.

Source: House of Lords, 27th June 2016


Asylum: Visas – Family Reunion

Asked by Lord Hylton: To ask Her Majesty’s Government whether, in family reunion cases, they are considering providing entry visas valid for longer than 30 days, to enable visa holders to complete all the required exit procedures and necessary travel arrangements.

Lord Ahmad of Wimbledon: We issue a flexible 30-day visa to non-EEA nationals coming from overseas to stay in the UK for over six months to enable them to collect their biometric residence permits (BRP) shortly after they arrive in the UK. When a family reunion application is made, individuals can specify the date they would like the 30-day visa to start to enable them to make any necessary travel arrangements, including obtaining exit visas. The start date of the visa can be deferred for up to three months from the date of application. If there is any delay expected in the processing time of the application, the individual will be contacted by UKVI and informed about the delay. Where someone is unable to make arrangements to travel to the UK within the 30 day period, they can apply for a replacement visa.

Source: House of Lords, 20th June 2016


‘Footnote' by Lord Justice Davis on Interpretation of ‘Clearly Unfounded'

Queen on the application of (1) FR (Albania) (2) KL (Albania)  & SSHDSecretary of State for the Home Department

Overview
The appellants in the two appeals before us are citizens of Albania. The Secretary of State rejected their applications for refugee status and their human rights claims, and certified both applications as "clearly unfounded" under section 94(3) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The consequence of certification is that the appellants are only permitted to appeal against the Secretary of State's decisions once they have left the United Kingdom. The Home Office refer to such an appeal as a "non-suspensive appeal" because it does not suspend any requirement that the individual leave the United Kingdom or the power of the Secretary of State to remove him or her. The issue before the court is whether the certification of the asylum claims of these appellants is flawed on public law grounds.

118. As in the case of KL, the parties invited the court to deal with the substantive application rather than to remit it to the Upper Tribunal and I agree that this is appropriate. Having considered the particular circumstances of FR and her children, for the reasons I have given I would set aside the decision to certify their claims.
IX Disposition
119. For the reasons I have given, I would grant permission to apply for judicial review and set aside the decisions certifying the claims of KL and FR and her children.

 [Footnote:
Lord Justice Davis:

121.  I agree with the judgment of Beatson LJ. I too have hesitated about the outcome for both of these appeals and whether they should be allowed. But, given the nature of the exercise, hesitation should resolve itself in favour of the appellants.

122.  The power to certify conferred on the Secretary of State is an important one. Many asylum claims, regrettably, are indeed clearly unfounded: to permit such claims to progress through the in-country appeals system not only has an adverse impact on limited resources it also operates to delay the hearing of the many other asylum appeals which are properly arguable. The rationale behind s. 94 is self-evident: and the importance Parliament has attached to it is illustrated by the language it has chosen, which the courts must respect and follow.

123. The power to certify is, in substance, in the nature of a summary decision. But it is a decision, or judgment, which has been conferred by statute on the executive. I agree with Beatson LJ that in this context the role of the court, in any consequential claim in judicial review proceedings, is one of review. The decision is not that of the court itself: and, as Lord Phillips has explained in the case of L, the assessment by the court ultimately is as to the rationality of the decision to certify made on behalf of the Secretary of State.

124. The style of drafting of the decision letters in these two cases is, in my experience, one commonly used on behalf of the Secretary of State. The drafting technique is to set out in detail and at considerable length the reasons for rejecting the asylum claim followed by a relatively shortly stated conclusion that the claim is assessed as clearly unfounded. That is not necessarily an objectionable technique: but of course it does necessarily then invite close attention to the reasons (and the manner of expression of those reasons) in the preceding parts of the decision letter.

125  I would not agree, however, as a matter of generality, with the suggestion to the effect that prior isolated references in a decision letter to (say) "inconsistencies in your evidence" or "improbabilities in your account" would necessarily be incompatible with a decision to certify as clearly unfounded. It all depends. Cherry-picking of certain expressions in the decision letter will not necessarily vitiate a decision to certify, any more than carefully chosen language in such letter will necessarily validate a decision to certify. The substance of the matter has to be appraised. Ultimately the decision letter must be read in a practical way and as a whole, in the context of the surrounding evidence. 

126.  The crucial point to emphasise for these purposes is that there is a two-stage reasoning process in play here. The style of drafting adopted in this case, although not of itself objectionable, should not be permitted to lend any encouragement to an approach: "because I have rejected the asylum claim therefore I certify as clearly unfounded". That is not permissible: and in fairness the policy guidance recognizes as much.

 127.  An analogy can be drawn here with a decision of the court or Upper Tribunal to certify proceedings as totally without merit. Indeed the certificate of the Upper Tribunal Judge to that effect in FL was one of the bases on which permission to appeal was given by McCloskey J. The parties pragmatically did not seek to develop before us separate arguments on that point. But the two separate jurisdictions – the power of the Secretary of State to certify as clearly unfounded under s. 94 and the power of the Court or Upper Tribunal to certify proceedings as totally without merit – have this consideration in common: that is, that both powers are exercisable in a case assessed, putting it broadly, as "bound to fail". For that reason, it is commonplace for judicial decisions to refuse permission to apply for a review of a decision to certify as clearly unfounded also to certify the proceedings – and properly so – as totally without merit. 

128  I would draw attention in this regard to the decision of a constitution of this court in the case of Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82. In that case, addressing in general terms decisions to certify as totally without merit, Underhill LJ (in giving the judgment of the Court) emphasised that the reasoning for refusing permission to apply for judicial review is an exercise distinct from the reasoning for certifying as totally without merit. That remains the case even if the latter decision is founded upon the reasons given for the former decision: see in particular at paragraph 21 of the judgment. That two-stage approach 

Published on Bailii, 23/06/2016


 

Last updated 1 July, 2016